Trump’s Second-Term Judicial Nominees Mirror First Term, Suggesting Continued Conservative Shift on US Courts

During his second term, President Trump’s selections for lifetime appointments to the federal bench continue to resemble those of his first presidency, despite his previous threats to distance himself from the Federalist Society and its establishment conservatism.

As of mid-August, over 20 nominations have garnered attention, with influential right-wing voices looking ahead to potential vacancies at the US Supreme Court. Sources familiar with the process report that Trump has been more involved this term, speaking with some potential candidates. White House attorneys are also aware that jurists considering retirement are watching whom Trump selects for lifetime positions in the three-tier US judiciary.

After an initial outlier like Emil Bove’s appointment to a powerful US appellate court, the White House has adopted a more traditional pattern. Bove, who served as a personal attorney for Trump and later became a top Justice Department official, pushed a political agenda that included dropping federal charges against New York City Mayor Eric Adams.

The Wall Street Journal editorial page, which had criticized Bove’s selection, recently wrote that Trump’s picks “are moving in a comforting direction.” More recently, the same editors approvingly highlighted Rebecca Taibleson, a nominee for an appellate court, stating “Better nominees mean more vacancies.”

Judicial retirements during this second Trump term have been relatively scarce. According to Russell Wheeler of the Brookings Institution, fewer judges have announced their retirements since Trump’s 2024 election than after any other presidential election in the last two decades. Some speculate that even Republican appointees may be hesitant about whom a Republican president might appoint as successors.

The consequences of these lifetime posts cannot be overstated. Judges at all levels are poised to decide lawsuits against Trump’s aggressive second-term agenda, along with recurring battles over reproductive rights, racial remedies, and the separation of church and state.

Most of Trump’s nominees have ties to the Federalist Society and follow established right-wing paths. Several, including Taibleson and Eric Tung, nominated to regional US appellate courts, served as law clerks to conservative Supreme Court justices. Others are well-known leaders of red-state litigation, such as Missouri state solicitor general Joshua Divine and Alabama state solicitor general Edmund LaCour, both nominated to US district court posts in their respective states.

Michael Fragoso, former chief counsel to then-Senate Republican Leader Mitch McConnell, noted that the pool of people being selected remains largely the same, stating “It’s the same apple cart, just slightly different apples.” The second term nominees appear to have more experience in Republican politics, working with GOP campaigns and committees, or as state political appointees.

During Trump’s first presidency, McConnell was a crucial member of the triumvirate that steered judicial appointments. The other two were Don McGahn, then White House counsel, and Leonard Leo, a Federalist Society leader.

Trump criticized the Federalist Society earlier this year after a US Court of International Trade panel that included a first-term Trump appointee ruled against his tariff policy. However, the group’s influence remains substantial due to its vast network, which includes virtually all leading lights of today’s conservative movement.

The daily business of judicial selection is currently overseen by deputy White House counsel Stephen Kenny. He previously worked for the Republican National Committee and earlier at Jones Day law firm (home of former White House counsel McGahn) and for Senate Judiciary Committee Chairman Chuck Grassley.

White House officials declined to answer specific questions about its vetting process and the people Trump has personally screened. However, a larger number of people are involved than during the first term, both within and outside the White House.

Mike Davis, a former counsel to Grassley and now president of a conservative advocacy organization (The Article III Project), is one of those pushing for tough, “fearless,” nominees. Davis has reportedly gained Trump’s ear. He recently praised Bove, specifically citing his action to end the Adams prosecution, and publicly backed Taibleson, who served as a law clerk to US Appellate Judge Brett Kavanaugh (now a justice appointed by Trump) and the late Justice Antonin Scalia.

If a justice were to retire in the upcoming months, Fragoso stated “Now is the best time in 40 years to do it.” He added that there’s a president who wants to pick strong conservatives and a Senate that is eager to confirm them. However, neither of the two eldest justices, Thomas, 77, and Alito, age 75, have responded to questions about their retirement plans. Both are Republican appointees who would favor likeminded successors.

Thomas has been on the bench since October 1991, nearly 34 years, and if he stays three more years would become the longest serving justice in US history. Thomas may not want to set a record, but he has shown no sign that he is ready to step down. Alito, meanwhile, has seemed increasingly disgruntled over his nearly 20 years on the bench. However, he is still young for a Supreme Court retirement. He also remains on the winning side of most tightly fought cases.

Based on past cycles of nomination politics, there is bound to be substantial right-wing pressure on Thomas and Alito to retire and give the president an opportunity to name a younger successor. If Trump were to look beyond the federal bench, possible contenders could be US Sen. Mike Lee, 54, a former Alito law clerk and federal prosecutor who was on Trump’s highly publicized 2016 list, or current US Solicitor General John Sauer, 50.

Sauer, who served as a law clerk to Scalia, would come with the bonus of having successfully represented Trump in the 2024 Supreme Court case that gave him immunity from criminal prosecution. And if the president has sent a single message in this second term, it’s that loyalty matters.